State v. Durham

• Decision Date: 19 October 1897
• Citation: 28 S.E. 22,121 N.C. 546
• Parties: STATE v. DURHAM.
• Court: North Carolina Supreme Court

28 S.E. 22

121 N.C. 546

STATE v. DURHAM.

Supreme Court of North Carolina

October 19, 1897

Appeal from superior court, Vance county; Robinson, Judge.

Isham Durham was convicted of a willful trespass on lands, and appeals. Affirmed.

Indictment under section 1120 of the Code, for entering land after being forbidden; tried on appeal from the judgment of a justice of the peace.

James R. Young, for the state, testified: "I am in possession of a farm near Chalk Level, just north of Henderson. Directed my tenant, Tom Allen, to notify defendant not to trespass on the premises. There was a fence, composed of two or three stands of wire, across that part of it where the trespass was committed. This fence was taken down, and pushed to one side and brush thrown out, and a road made across my land, and vehicles and horses driven across." On cross-examination: "I put this wire fence up in 1887 or 1888. I have heard an old road formerly ran across this land,--the old Warrenton & Oxford stage road. I heard Mr Belvin testify on the justice's trial that it had been a public road, but that in 1869 or 1870 the board of township trustees, of which he was a member, took the overseer and hands off it, and assigned them to other roads, and discontinued the road. (Objection by defendant to so much of this answer as undertook to state what the board of township trustees did as immaterial, because, by virtue of the laws then in force, said board had no authority to discontinue a public road. Overruled. Exception by defendant.)" The witness stated further that the road leading from Chalk Level to this land is still open; that there are still signs of an old road in places across the land and beyond it towards Harris' cross roads. The road is still there, though used but little, and not kept up as a public road. There has been no road across his land since he bought it in 1885. Defendant claims that it is a public road, and that he has a right to travel it.

Thomas Allen, for the state, testified: "I live on the farm in question. Lived there last year. In February or March of this year I notified Durham not to trespass on the land. The wire of Young's fence was down, and I nailed it up, and cut bushes and put in the road. Defendant pulled them out, and told me not to do it, as he was going to travel it until Lawyer Hicks told him to stop. I tended the land last year and intended to do it this year. He asked my permission to go across it last year, and I granted it. Knew nothing about it until last year."

W. A Belvin, for the state, testified: "I have lived near Henderson since 1855. Knew this road ever since. It was a public road. I was a member of the board of township trustees and a justice of the peace. About 1870 or '71 the township trustees discontinued the road, took the hands off, and assigned them to another road. (Defendant objected to this testimony for the reason that the statute directed, and still does, the mode by which a public road might be discontinued, and it is not competent to show that it was discontinued in any other way, except by nonuser for thirty years. Objection overruled. Defendant excepted.)" The witness stated that it had not been used or worked for 27 years. On cross-examination he stated: "I have not been a justice or road supervisor all the time. If this road had had an overseer, or been worked, I would have known it. We did not stop it up; we simply took the hands off. I cannot say it has not been traveled by those who wanted to, in all that time; but it was discontinued as a public road by the township trustees. I do not remember that every landowner was notified, or that notice was posted; but I presume we did what was necessary. The book of the trustees containing this was burned in the Henderson fire in the spring of 1870. I never knew or heard that the county commissioners had anything to do with discontinuing it. The part of this road that crossed Young's land has been in cultivation. I saw it in cultivation last year."

William Buchanan, for the state, testified: "I have owned the land adjoining Young's for 24 years. There has been no public road there during that time. The place where the road was has been in cultivation. Young put up a wire across the old road." On cross-examination he stated: "The road from Chalk Level is still open till it reaches Young's land, and beyond his land the old way is still there. Those wishing to go that way, when they reach Young's, turn around his corner, and cross my land. This was much further. The first of this year I stopped this up."

W. T. Cheatham, for the state, testified: "I am 65 years old. Have lived in Henderson 39 years, and very near here all my life. Am a practicing physician, and know the place in question. It has not been used as a public road since 1869 or 1870. It became very rough, almost impassable, and was never much used after Henderson became a town. I cannot say when people who wanted to, or would undertake it, ceased to go along there."

The state then introduced the registry of the deed to the wife of the prosecutor, and rested.

Defendant a witness in his own behalf, testified: "I am 53 years old. Have known this place 40 years. Have lived within two miles of it for 40, and at it 27, years. I remember when this road across Young's land was worked by an overseer and hands. This wire was put up 10 or 11 years ago. It came...